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Google AdWords Opens Up a Can of Trademark Worms



The online world is noisy enough as it is. Everyone is trying to get everyone’s attention to sell whatever it is they have. They fight and google-logoscratch and claw to get above the din of the marketing noise. They fight to protect their brand and on and on and on. They also complain a lot. Seems like a lot of the news these days is about how some of the biggest enablers of online business like Facebook and Twitter are screw-ups and aren’t doing the right thing. Well, for the foreseeable future these two may be able to enjoy some relative peace and quiet as Google pops open its newest can of worms around its AdWords offering to allow trademarks of others to be used in certain ad copy of any advertiser. The fur is already starting to fly on this policy that will take effect on June 15.

So what’s all the fuss? To hear Google say it they are opening up the market in a way that will benefit the advertisers and search users themselves. They use a nifty little example at the start of their blog post to put the reader in the desired frame of mind.

Imagine opening your Sunday paper and seeing ads from a large supermarket chain that didn’t list actual products for sale; instead, they simply listed the categories of products available – offers like “Buy discount cola” and “Snacks on sale.” The ads wouldn’t be useful since you wouldn’t know what products are actually being offered. For many categories of advertisers, this is the problem they have faced on Google for some time.

That is why, in an effort to improve ad quality and user experience, we are adjusting our trademark policy in the U.S. to allow some ads to use trademarks in the ad text. This change will bring Google’s policy on trademark use in ad text more in line with the industry standard.

In Google’s humble opinion, they are simply finally playing along with what is considered common practice in the paid search space anyway. Heck, Yahoo and Microsoft are doing so don’t yell at us. They even have rules to keep this under control.

Well, many advertisers, despite the real threat of higher per click costs due to increased competition (oh, Google’s post didn’t go there of course ;-) ) are happy to hear this and they should be. They can now broaden their approach to selling through AdWords. It’s the trademark holders themselves that are up in arms. The New York Times tells of a class action suit being filed in Texas due to this already happening and raising the ire of some including a company called Firepond who is at the center of the suit.

On Monday, FPX filed a class-action suit against Google in federal court in Texas, saying that Google had infringed on its trademark and challenging Google’s policies on behalf of all trademark owners in the state. Legal experts said it was the first class-action suit against Google over the issue.

Where this all will go is anybody’s guess. Here’s one take.

Legal experts said FPX faces long odds in convincing a court that it has the right to represent all trademark owners in Texas. Trademark cases do not lend themselves to class action because they tend to hinge on whether the use of someone’s trademark confuses people.

This is not the only case of course that has Google in the cross hairs. Another company, Rescuecom, filed suit back in 2005 and a district court has recently resurrected that case which some feels poses more of a threat to Google. Whatever happens the door is now being thrown wide open for copycat cases and in this day and age of “revenue is revenue” it may be a company’s best shot to survive by shooting for a big court ordered payday from Google.

This issue is going to be hotly contested regardless of opinions because they will be so varied depending on industries and individual companies etc, etc. Maybe Google should create some program for trademark holders to be registered with the company and be given some form of consideration. It’s anybody’s guess and, of course, the opinions will be many. One that has been already been stated

“They are pouring fuel on the fire,” said Eric Goldman, an associate professor at the Santa Clara University School of Law and director of its High Tech Law Institute. “Trademark owners are not going to like this change in policy. They already felt that Google was not treating them as well as they liked. Here Google is making it harder to control the use of their trademarks online.”

Google fires back

“I think that there will be trademark owners that do not like this policy,” said Terri Chen, senior trademark counsel at Google. “But trademark law allows for that. It is a pretty well-established principle in the offline world and in the online world.”

Be sure that between now and June 15th, and likely well beyond that, there will be a lot of yelling, screaming, kicking and clawing as Google just goes about its business. How do you feel about this? Give us your best Friday parting shot before you start the weekend. It’ll be good for you. Please don’t cross any trademark lines though because, you know, we have rules here.

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